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Virginia Employer Defeats Retaliation Claim With Timely Documentation of Performance Issues

A Fourth Circuit case decided this past week is yet another example of how documenting employee performance problems– at the time they actually occur– can save an employer from a retaliation claim, even when an employee is fired immediately after a complaint of unfair treatment.  McDougald v. Quad/Graphics Mktg., No. 18-1026 (4th Cir. 12/13/18).

In this case, Plaintiff McDougald worked as a press tech in a printing plant acquired by Quad/Graphics in 2013.  In 2014, he was disciplined seven times.  This included verbal warnings, written warnings, performance plans, temporary suspension, and finally a Last Chance Agreement signed in November 2014.  The Agreement was the result of a serious error by McDougald which caused excess production of a whopping 380,000 books.  Although Quad/Graphics felt it could terminate McDougald at that time, it decided, as employers often do in these situations, to give him “one last chance to successfully perform his job duties.”

Sadly, that wasn’t enough.  In February 2015, there was a production error made during McDougald’s shift.  On March 2, Quad/Graphics met with McDougald as part of its investigation of the problem.  During the meeting, McDougald complained of race discrimination.  Quad/Graphics suspended McDougald following the meeting, and terminated him effective the next day.

McDougald in response filed suit for discrimination and retaliation.  The lower court noted that the close timing between McDougald’s complaint of discrimination and termination from employment was evidence of retaliation.  However, in this case, it simply wasn’t enough to overcome the “highly relevant” evidence of performance issues and discipline, which predated McDougald’s complaint of discrimination.  Summary judgment was granted in Quad/Graphics’s favor, which the Fourth Circuit affirmed last week.

The case is a good reminder to employers about the importance of documenting performance issues, and addressing them with discipline, at the time the problems occur.  Without such evidence, a problem employee who complains about unfair treatment within a few months prior to adverse action, is likely to meet a much different result than McDougald did in this case.

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